ADL2601-Administrative Law SUMMARY NOTES.

ADL2601-Administrative Law SUMMARY NOTES. UNIT 1 – DESCRIBING ADMIN LAW 4 Key issues / pillars in Admin Law Authority = * Governs relationships between legal subjects * Relationships are not on equal footing (inequality – vertical relationship) * Always a superior / senior official involved Admin action= * Facilitates & regulates human behaviour / interaction * Conduct of anyone exercising public / authoritative power Just Admin action * The right of every person * All admin action by persons exercising public power must be “LAWFUL, REASONABLE & PROCEDURALY FAIR” Control of admin action = The way / manner in which authority / power has been exercised 3 Requirements for any admin action:- 1. 2. Be lawful – must comply with all req of law (as found in sources of law) Be reasonable – Must have a reasonable effect / result - Discretion exercised & decision taken by person in authority must be correct (based on objective facts & circumstances) 3. Be procedurally fair – Correct procedure must be used to take decision - Subordinate party must be given chance to defend position before decision is taken When decision results in someone’s rights being adversely affected – written reasons for decision should be given * Law provides protection against any possible harm which results from exercise of powers (against abuse of power) * To correct an action – to rather use method of internal / admin control (senior officials review action) then going to court Admin Law is the sum total of legal rules that grant people / bodies in authority power to: * take action * Prescribe procedures to be followed where taking such action * Ensure such action is within the boundaries of the law Also provides for control over such action (Activity on page 7) UNIT 2 – SOURCES OF ADMIN LAW Sources of Admin Law:- 1. Binding (Authoritative) sources: 1. The Constitution - Most important statutory - & most authoritative source - Sets standard for which admin conduct & actions of every admin functionary / institution in SA - Guarantees justice for all by demanding all req for admin action must be met. (Guarantees Just Admin Action) (Activity page 12) lOMoARcPSD| 2 2. Legislation * Original = Passes b Parl in Nat sphere = 2 examples of Acts of Parl that compliment prov of Const & crucial to Admin Law:- # Promotion of Justice Act 3 of 2000 (PAJA) # Promotion of Access to Info CT 2 OF 2000 = Passes by 9 provincial legislatures in Prov Sphere = Also passed by elected local govs (Munic councils) in Local spheres * Subordinate = Passes ito original legis (but must not conflict with prov of enabling Act / statute) = In Nat sphere of gov – this legis passed by institutions empowered to make these rules = Examples:- # Proclamations of President (issued ito empowering statute to declare date of commencement of particular statute # Regulations made by ministers ito enabling Statute = Found in Prov & Local sphere too (Activity page 15) 3. Case Law (judicial precedent) - Task of courts to determine meaning of particular legal rule & apply rule to concrete situations - Guidelines prescribed by Const - Judgments of previous cases binding on other courts (Activity page 16) 4. Common law - Unwritten law of SA - Common law not important part of Admin law (But English & Roman-Dutch law played role in development of Admin law) - 2 Examples of English law:- # principle of ultra vires # Development of rules of natural justice 5. Admin practice (custom of usage) 6. International Law 2. Persuasive 1. 2. Writing in books & journals explaining academic opinions – - Courts often refer to academic opinions expressed in law journals & books Policy docs (Such as Green & White papers) – - Current gov policies on various topics expressed in so-called White - & Green Papers - Green Papers = Consultative doc = People invited to comment on various matters to be regulated by gov in through papers - White Papers = Is blueprint of gov policy on various matters 3. Reports by “state institutions supporting Const Democracy. Ie. Reports of Human Rights Comm – Institutions (as Public Prosecutor & Attorney-General) report on admin conduct lOMoARcPSD| 3 4. Foreign Law (Comparative law) - Sec 39(1)(c) states court may consult F law Where to find Admin Law sources Read in book – page 20 Activity & scenario page 21 Activity page 23 UNIT 3 – ADMIN LAW RELATIONSHIP Activity page 24 & 25 1. Characteristics of Admin Law relationship 1. At least 1 legal subject must be person / body who exercises power 2. Position of power must be held by person clothed with government authority & who is able to exercise power * Admin law relationships can exist between:- Person who exercises authority & private individual in subordinate position Person who exercises authority & lower-ranking official in same department (inter se) (Activity page 27) 2. Distinction between general & individual admin law relationship 2.1 General (objective) relationship:- * Legal rules governing relationship between parties apply to all subjects within group * These rules apply impersonally & non-specifically (NOT to particular legal sunject) * Created, changed / ended by legis only. 2.2 Individual (subjective) relationship * Rules apply personally & specifically between parties * Contents will vary from case to case * Created by individual admin decisions * Not affected by new general legis provisions, unless Amending Act specifically that it affects relationship (Activity on page 28 & 29) UNIT 4 – LEGAL SUBJECTS OF ADMIN LAW RELATIONSHIPS Activity page 30 Activity page 31 1. Identification of the authoritative party to / in admin law relationship * Const describes auth party as “organ of state” Sec 239 declares:- NB! NB! NB! NB! NB! NB! NB! NB! NB! NB! NB! NB! NB! NB! NB! NB! NB! “organ of state” means – (a) Any department of state / admin in Nat , Prov / Local sphere of gov; or (b) Any other functionary / institution (i) exercising power / performing function ito Const / Prov Const (ii) exercising public power / performing public function ito any legis But doesn’t include a court / judicial officer Activity page 33 Downloaded by Rufaro Chikovore () lOMoARcPSD| 4 Sec 239 in greater detail:- “ (a) any department of state or admin” * In National Sphere = Departments of state / gov. * Eg. Dept of Agriculture; Arts; Culture; Science & Technology; Education etc * May refer to entire department and/or to its functionaries (public servant) * “Organs of state” include members of cabinet, Deputy Ministers, President as head of Nat exec & Deputy President * In Provincial Sphere = Includes Prov dept of sate (provisional public service); Premiers of 9 provinces; &other members of Exec Councils (MECs) – all executive heads of various departments * In Local Sphere = Include Munic parties & various munic councils vested with executive auth * “Organs of state” refers to functionaries & institutions part of public admin “(b) any other functionary / institution (i) exercising power / performing funct ito Const / Prov Const” Or (ii) exercising power / performing public funct ito any legis * Definition of “organ of state” has been broadend * Difficult to determine if in particular case – if functionary / institution acting in public / private capacity, * Have to determine in each case if (a) Functionary exercises public power / performs public function (b) If functionary is doing it ito the legislation * Exercise of public power – decisive. Currie & Klaaren explain:- Indicates that, while private person / entity can be an “administrator” … what is important is public nature of power exercised rather then person / entity exercising it Activity page 35 2. Role of Associations, Clubs & other “private” organisations” *Voluntary assoc – sports club, church assoc etc = NON-STATUTORY bodies * Relationship between members & management – similar in certain respects to admin/subordinate relationships of public law (unequal relationships) * Although might have professional status – not organs of state * Not created by statute & don’t possess any state auth (remain private non-statutory bodies) * Traditional common law rules of admin apply (because management in position of auth over member) * Because matters as admission, suspension etc are governed by their Consts (courts will interpret powers strictly on basis of agreement betwn members & assoc as contained as in their Consts) Activity page 37 3. Persons (natural / juristic) whose rights & interests are affected by exercise of authority * Person in subordinate position not always person / entity outside public sphere – but may be lower ranking gov official. * In such situation – superior gov official / body exercises auth over subordinate official * Remains public law relationship * Person in subordinate position must obey instructions of superior officer & may be prohibited from action in certain way 4. Is the subordinate person “helpless” (powerless) in the authoritative relationship? * No – subord person never stripped of their rights, privileges & interests. * Those in auth not allowed to misuse their superior power – obliged to act in accordance with the law * Also their duty to act in interest of people / serve & promote public interest * Person in subord position – protected by law (the Const) lOMoARcPSD| 5 5. Object of (or reason for) admin law relationship? * Activity page 39 * Object = the issue which brought about the legal bond linking 2 subjects * When we link object of the admin law relationship to admin action = The object id the subject matter of the admin action UNIT 5 – ADMINISTRATIVE ACTION Activity page 42 1. Need to establish if admin action is involved * Important to determine what “admin action” implies & if admin action is involved in particular situation * Reason = application of right to admin action depends on if “admin action” has been performed by either organ of state any other exercising public power. * There are actions that may look like admin action but are NOT 2. Definition of Admin action 2.1 Broad description of admin action “Admin action” can be described as:- - any decision of an organ of state of an admin nature made ito prescriptions of empowering laws - any decision of private persons when they exercise public power / perform public functions ito empowering laws * Const Court approaches meaning of “admin action” negatively. * When had to decide if right to admin action was applicable indicated “what is not admin action, rather then what is” * 2 leading decisions in this matter is President of RSA v SA Rugby & Football Union & Pharmaceutical Manufacturers Assoc of SA In Re: ex parte President of RSA 2.2 Const instructions relating to admin action * Sec 33 of Const reads:- (page 45 in study guide) * Sec 33 – example of where Const contains only broad framework but left it to legis to provide details * Deadline for adoption of such legis was Feb 2000 * Legis was drafted by SA Law Comm & redrafted * Revised Admin Justice Bill 56 of 1999 was presente4d to Parl & finaly passed by Parl as Promotion of Admin Justice Act 3 of 2000 * Act gives effect to rights contained in sec 33 of Const 2.3 Admin action as described in PAJA * Read on page 46-47 of study guide * Activity page 47 * After collecting pieces next step to look at form / construction of pieces * Action will qualify as admin action when takes form of a decision * Will qualify as admin action when it involves failure to take a decision * Decision must be of an admin nature. = Brings to distinction between Const & Admin law generally & specifically decision between areas of focus of these branches of law Explanation: Both branches concerned with way state is governed & with distribution & exercise of public power lOMoARcPSD| 6 Distinction:- Const law: regulates interaction between organs of state at highest level & judiciary Admin law: concerned with only one branch of state system nl Executive * Decisions must be taken ito empowering provisions (must be allowed by law) * Decision must adversely affect rights (imposes a burden on someone) * direct external legal effect – Phrase comes from German Federal Law of Admin Procedure of 1976 * Functionaries & institutions capable of making decisions & performing admin action are organs of state &private persons exercising public power Activity page 50 3. Action that does NOT qualify as Admin action * Some actions performed by Organs of state / private persons exercising public powers don’t qualify as admin action Activity page 51 Action will not qualify as admin action if it involves the following:- 1. Powers & functions of Nat -; Prov - & local Exec. (read on page 52) 2. Legis functions of Parl, Prov Legi & local councils 3. Judicial functions of Judic officer of a court 4. Decisions under Promotion of Access to Info Act 2 of 2000 (exclusion for sake of simplification. Activity page 53 4. Classes (types / kinds) of admin action (a) Legis Admin action (b) Judicial admin action (c)“purely” admin action 4.1 Separation of powers & 3 classes of admin action * 3 classes have their roots in separation of powers * These 3 classes reflect the function of particular action 4.2 Three classes of admin action & distinctive features of each Activity page 55 4.2.1. Legis Admin action 1. Making & issuing of delegated legis when authorised to do so by enabling legis (subordinate legis) 2. Most easily recognised & published in official doc – Gov Gazette 3. General relationships are created, varied and/or ended my admin legis actions 4. Specific req apply to adoption, amendment / repeal of all legis admin action 5. Power to delegate a legis power exists only when there is express statutory auth for this 6. Must be within framework of auth given by the enabling Act 4.2.2 Judicial Admin action * Legal rules interpreted & applied to concrete situations * Formal & Material tests are applied to determine whether func / institution is a judic admin funct / instit * Material tests:- (a) Is there legal dispute / uncertainty re rights, privileges, freedom, power / duties? (b) Has there been a decision & application of law re rights & duties? * Formal tests:- (a) Does admin institution possess similar attributes to those of courts )that is independence, accessibility, application of specific hearing procedure & legal qualification of its members? lOMoARcPSD| 7 * Only “genuine” judicial functions will apply with both tests. Activity page 57 4.2.3 “Purely” Admin action * The true admin action where admin law relationships are created or varied * Been divided into 2 broad categories:- (a) Consensual (multilateral) and (b) Authoritative (unilateral) admin actions * Division based on measure of cooperation & agreement between legal subjects Consensual (multilateral) admin action = Req consent / cooperation of person(s) affected in particular admin law relationship = Eg. Collective Labour agreement Authoritative (unilateral) admin action = Clearest example of “purely” admin action = Admin auth doesn’t need consent / cooperation of other person to make decisions = ex. Granting / refusing of trading licence (involves authoritative decision making) = Decision must be ito the prescripts of the law = Further subdivided :- (a)Mechanical admin action – Refers to strictly defined / circumscribed instructions to auth to perform duty – Neither officer or person affected can have any uncertainty about situation Ex. When you tender correct fee for dog licence – clerk has no choice but to give it to you (b) Discretionary admin action – Often organs of state has power to make a choice between 2 or more alternatives * In some instances – has wide discretionary power (law leaves large measure of freedom) Ex. Application for liquor licence * Some instances has narrow discretion (number of options layd down to be taken into acc) * Decision maker can still not free to act as they please Read note page 60 & do Activity page 61 (c)Action by police – very special form of admin action because usually takes place on the spur of the moment. * But police may not do as they like – powers are subject to law. (d) Action relating to internal / domestic functioning of public admin * Relates to internal organisation, division of labour & functions of “internal admin action” * may be of Legis, Judicial nature / unilateral admin action 5. Legal force of Admin action * Means effect of such action in law * We distinguish between the moment:- = when admin action takes effect and = when legal force of admin action is terminated 5.1 When does legal action take effect? * Necessary to determine when takes action in order to determine period within which an appeal to higher domestic review tribunal / courts may be lodges * Again we must distinguish between the 3 classes of admin action 1. Legis admin action - Affects person as soon an regulation / proclamation has been promulgated & stated date of commencement arrives - Internal Admin is bound by legis action as soon as legis has been adopted 2. Judicial admin action - Takes effect as soon as particular judicial institution gives its decision / delivers judgment (unless provides for period before may lodge / judgement is reserved) lOMoARcPSD| 8 3. Purely admin action – Takes effect upon decision becoming known (by publication/indiv notification 5.2 Termination of legal force of admin law * Terminated by repeal; amendment; lapse of time; withdrawal of one of subjects to relationship or by court order * If organ of state can’t amend, repeal or alter its decision – said to be functus officio (“having completed task / duty; no longer functioning”) * When will organ of state be functus officio? 1. Legis admin action - Legis organ may repeal / amend legis admin at any time - Repeal my not have retrospective effect - Where indiv has acquired rights as result of legis action, repeal /amendment doesn’t affect these rights 2. Judicial admin action - Is functus officio once decision is made & can’t alter / repeal decision - Has force of res iudicata & may only be altered, rescinded or upheld by higher judic body – usually High Court 3. Purely admin action – Draw distinction between valid & invalid action Invalid admin action:- * May be altered / withdrawn by administrator. * But if affected person has questioned validity of admin action before court / has acquired rights or privileges action can’t be altered by auth. * Will affect only those “targeted” by decision Valid admin action:- (1) Valid onerous (“burdensome”) admin action may be altered by administrator (2) Valid beneficial admin action may be altered by auth only where power to do so has been conferred expressly / by necessary implication (3) Where admin action affects status of an indiv – the auth may not rescind / withdraw decision unless revocation is authorised expressly / by necessary implication eg. Adoption order Activity page 65 UNIT 6 – REQUIREMENTS FOR VALID ADMIN ACTION: JUST ADMIN ACTION Read Broad outline on page 68 Read Scenario on page 68 Activity page 69 1. Explanation of concept (idea) of “Just admin action” *Read Sec 33 of Const again (pg 69) * Aimed at preventing public institutions & funct from abusing / misusing their power in dealing with an indiv who is in subord position * From view of indiv, its directed at protecting them in any dealing with public instit / funct. Guarantees just treatment for indiv in their dealings with public instit / funct * Also demands promotion & maintenance of transperant, accountable & open admin action on part of public inst / funct. * Sec 195(1) of Const spells out values &principles that govern public administrators. (Read what they are on page 70) * Can say that Just admin action includes accountability & transparency in execution of functions, will ensure:- Increased participation by public in exercise of public functions That admin will weigh up their decisions against values included in Const Admin accountability lOMoARcPSD| 9 “Just admin action” is an “umbrella” / overarching req that relates to ALL req for valid admin action. As an over-arching req “just admin action” determines legal boundariesof any admin action & ensures that admin action is performed in accordance with all relevant rules prescribed by law.